Maher v Commonwealth Bank of Australia & Ors [2007] FCA 113

FEDERAL COURT OF AUSTRALIA

Maher v Commonwealth Bank of Australia & Ors [2007] FCA 113 DENNIS MAHER v COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124), GREG FIRTH, GRAY & JOHNSON (A FIRM), THE REGISTRAR OF TITLES (VICTORIA) AND THE OFFICIAL TRUSTEE IN BANKRUPTCY VID204 OF 2001

JESSUP J

14 FEBRUARY 2007

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID204 OF 2001

BETWEEN: DENNIS MAHER

Applicant

AND: COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)

First Respondent

GREG FIRTH

Second Respondent

GRAY & JOHNSON (A FIRM)

Third Respondent

THE REGISTRAR OF TITLES (VICTORIA)

Fourth Respondent

THE OFFICIAL TRUSTEE IN BANKRUPTCY

Fifth Respondent

JUDGE: JESSUP J DATE OF ORDER: 14 FEBRUARY 2007

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. Each of the two motions of which the applicant gave notice on 20 November 2006 be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID204 OF 2001

BETWEEN: DENNIS MAHER

Applicant

AND: COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)

First Respondent

GREG FIRTH

Second Respondent

GRAY & JOHNSON (A FIRM)

Third Respondent

THE REGISTRAR OF TITLES (VICTORIA)

Fourth Respondent

THE OFFICIAL TRUSTEE IN BANKRUPTCY

Fifth Respondent

JUDGE: JESSUP J

DATE: 14 FEBRUARY 2007

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 On 9 February 2007, I heard two motions by the applicant of which he gave notice on 20 November 2006. What I shall call the first motion purported to invoke the power of the court under O 37 r 10 of the Federal Court Rules, and sought: A declaration that until reasons for decision are provided by the Honourable Mr Justice Finkelstein in respect of the Order made 26 July 2005, the said Orders of 26 July 2005 are not capable of enforcement. What I shall call the second motion was for an order – That the certificate of taxation on 9 June 2006 and/or 24 July 2006 be set aside for want of jurisdiction, the Order pursuant to which it was conducted not being entered until 20 September 2006. Although, ultimately, the questions raised by the motions were straightforward, certain assertions made by the applicant in his oral argument in support of the motions required me to reserve judgment for a short period, to permit me to consult the court file, and particularly the transcript of proceedings before Finkelstein J on 26 July 2005. 2 As part of orders made by Finkelstein J on 26 September 2001, the applicant was ordered to pay the costs of the first, second and third respondents. Those orders were set aside by the Full Court on 16 April 2002, but a certificate of taxation with respect to the costs covered by those orders issued on 4 November 2004 in the sum of $16,245. 3 On 2 and 5 February 2004, Finkelstein J again ordered the applicant to pay the costs of the first, second and third respondents for certain aspects of the proceedings. On 4 November 2004, a certificate of taxation issued in relation to those costs in the sum of $57,603. 4 On 9 February 2005, a Registrar of the court ordered the applicant to pay the first, second and third respondents the sum of $73,848, being the total amount of the two certificates of taxation which issued on 4 November 2004. In a recital to that order, it was made clear that the certificates were based upon the orders made by the court on 26 September 2001, and on 2 and 5 February 2004. 5 By Notice of Motion dated 8 July 2005, the applicant sought, pursuant to O 37 r 10 of the rules of court, that the order made by the Registrar on 9 February 2005 be set aside, and that the two certificates of taxation issued on 4 November 2004 be set aside or, alternatively reviewed or reassessed. In an affidavit in support of that Notice of Motion, the applicant made it clear that his substantial ground was that one of the certificates of taxation, and the order of 9 February 2005, had been based upon (in the case of the order, based in part upon) the costs order made by Finkelstein J on 26 September 2001, which had been set aside by the Full Court. 6 The applicant's Notice of Motion of 8 July 2005 came before Finkelstein J on 26 July 2005. I have read the transcript of the hearing on that day. It is evident that it immediately became apparent to his Honour that at least one of the certificates of taxation, and the Registrar's order of 9 February 2005, could not stand. In the course of argument, his Honour appears to have been persuaded that there were grounds why the other certificate of taxation (which related to the costs orders made on 2 and 5 February 2004) should also be set aside. Although the rule of court upon which the applicant relied was considered by his Honour to be inappropriate, his Honour took the view that s 35A(5) of the Federal Court of Australia Act 1976 (Cth) was an appropriate source of power for him to grant the relief which would do justice in the circumstances. On 26 July 2005, Finkelstein J ordered that leave be granted to the applicant to amend his Notice of Motion, effectively so that it be treated as having been brought under s 35A(5); that the certificates of taxation of the costs ordered to be paid by his Honour on 26 September 2001, and on 2 and 5 February 2004, be set aside; and that the order of the Registrar made on 9 February 2005 be set aside. 7 The costs orders of Finkelstein J made on 2 and 5 February 2004 were not set aside. On 9 June 2006, a certificate of taxation in relation to the costs covered by those orders issued in the sum of $57,603. On 24 July 2006, a Registrar of the court ordered the applicant to pay that sum to the first, second and third respondents. 8 Manifestly, the court cannot make the order which the applicant seeks in his first Notice of Motion dated 20 November 2006. However, I am prepared to treat the motion as an application for a stay of the operation of the orders made by Finkelstein J on 26 July 2005. 9 On the face of it, the applicant would seem to have no conceivable basis for having Finkelstein J's orders stayed, since those orders effectively gave him everything which he sought in his Notion of Motion filed on 8 July 2005. The certificates which were set aside by Finkelstein J have, in effect, been replaced by the certificate which issued on 9 June 2006, and the order set aside by Finkelstein J has, in effect, been replaced by the order made on 24 July 2006. As it appears from the papers at least, what the applicant seeks to do is both artificial and curious. More importantly, perhaps, even if I had power to make a stay order of the kind which I have assumed the applicant is seeking, I can think of no reason why I should take that step, and none appears from the papers which the applicant has filed in court. 10 However, on 9 February 2007, the applicant informed me that the real vice in the orders of Finkelstein J made on 26 July 2005 of which he complained was that his Honour did not set aside the costs orders which he had made on 2 and 5 February 2004. When I pointed out to the applicant that his Notice of Motion filed on 8 July 2005 did not seek to have those orders set aside, he informed me that, during the course of the hearing before Finkelstein J on 26 July 2005, he had orally requested his Honour to set those orders aside. It was, it seems, his Honour's silent refusal to accede to such a request that made his orders of 26 July 2005 unpalatable to the applicant, and provided an evident reason why he would want a stay of those orders. 11 As I have said, I am prepared to assume that the applicant seeks a stay pending the receipt of Finkelstein J's reasons for the orders which he made on 26 July 2005. The applicant informed me that he desired to appeal (after seeking an extension of time for that purpose), but that he had been informed by an officer in the registry of the court that he could not lodge an appeal without at the same time filing a copy of the reasons of the Judge at first instance. 12 As a result of the submission made by the applicant on 9 February 2007, I was obliged to reserve judgment for the purpose of perusing the transcript of the hearing before Finkelstein J on 26 July 2005. The transcript reveals that, after his Honour had explained to the applicant that the court would send to him a notification of a further taxation (consequent upon the setting aside of the certificates of 4 November 2004), the applicant – for the first time I consider – raised the matter of the operation of the costs orders themselves made on 2 and 5 February 2004. This clearly came as something of a surprise to his Honour. The transcript reads as follows: MR MAHER: But in the application before you this morning it's also to set aside the costs order of the 57,000 we just mentioned. HIS HONOUR: I don't understand what you're talking about. MR MAHER: All right. HIS HONOUR: You want to set aside the taxation? MR MAHER: Yes. HIS HONOUR: That will happen. MR MAHER: Because ‑ ‑ ‑ HIS HONOUR: That will happen. You don't have to explain to me why. It doesn't matter why. MR MAHER: No, but I've understood the first cost order is defunct. HIS HONOUR: Yes. MR MAHER: Okay, the second cost orders were based on an order that you gave on the 2nd and the 5th of last year. HIS HONOUR: Correct. MR MAHER: One of those orders you set aside on the basis that I pay some money into the court, or not into the court, to the parties. HIS HONOUR: Yes. MR MAHER: My reading of your order doesn't say that if I fail to do that that these costs need to be taxed. You have set your own order aside so therefore there is no cost to be paid on it. HIS HONOUR: I see, let me have a look. That's the judgment that I handed down in February. MR MAHER: Yes, the 2nd and the 5th, your Honour. HIS HONOUR: So February of 2004. MR MAHER: Yes. HIS HONOUR: Thanks. MR MAHER: You would further need to look at the order on 16 March I believe, your Honour. HIS HONOUR: 16 March. MR MAHER: 2004. HIS HONOUR: Yes. What did I do in February? MR MAHER: You heard the matter in my absence, your Honour. HIS HONOUR: I made a costs order against you. MR MAHER: Yes, you made an order against me and then I came back and appealed against it to your Honour and your Honour set that order aside on the basis of funds were paid to the other side. HIS HONOUR: So just explain to me the point you want to make. MR MAHER: Your Honour, when you made the original orders on the 2nd and the 5th I was absent due to an illness. HIS HONOUR: No, I understand that. MR MAHER: Right, then I appeared before your Honour. HIS HONOUR: Yes. MR MAHER: Your Honour set the judgment aside and said the matter could be reheard on the basis ‑ ‑ ‑ HIS HONOUR: No, I didn't. I said I'd set aside the orders if you came up with the money and you didn't so the orders were never set aside. MR MAHER: It's just the way I read it, your Honour. HIS HONOUR: No, that's wrong. MR MAHER: All right then. It's just that my reading of the matter, it's not a self-executing order. HIS HONOUR: It's got nothing to do with self-executing. The orders that were made in February when you didn't show up were only going to be set aside if you came up with the money; no money the orders remain in place. MR MAHER: I see. HIS HONOUR: So that order and the order made on 16 March were properly the subject of taxation, or at least amenable to taxation. MR MAHER: Yes, all right, your Honour. The exchange between the applicant and his Honour then moved on to other matters. 13 I greatly doubt whether the events disclosed by the passage from transcript which I have set out above provide any warrant for the suggestion that the applicant orally applied to Finkelstein J on 26 July 2005 to have the costs orders which he made on 2 and 5 February 2004 set aside. It is, however, sufficient to say that no such application was formally before his Honour, and his Honour certainly took no step to convert the applicant's almost casual reference to those orders into a regular application which might have been dealt with by the court, with proper notice to the other parties. In any event, his Honour went out of his way to explain to the applicant how the orders of 2 and 5 February 2004 came to be made, including by way of reminder that he had previously given the applicant the opportunity to seek to have the orders set aside, if security were lodged to cover the costs of other parties – an opportunity of which the applicant did not avail himself. As the transcript makes clear, once these explanations were provided by Finkelstein J, the applicant said, "Yes, all right, your Honour." 14 I do not consider that a motion – written or oral – by the applicant for the setting aside of the orders made on 2 and 5 February 2004 was in fact before Finkelstein J on 26 July 2005. The applicant's suggestion to me on 9 February 2007 that he had made, and that Finkelstein J had rejected without reasons, such an application was, I consider, quite disingenuous. What happened on 26 July 2005 is that the applicant was wholly successful in relation to his Notice of Motion filed on 8 July 2005. No other question was either before the court, or dealt with by the court, on that occasion. I consider that the proposition that the applicant might have legitimate, or even arguable, grounds to appeal against the orders made by Finkelstein J on that occasion is utterly groundless. 15 That brings me to the second motion. As he explained it to me on 9 February 2007, this motion should be seen as related to the first motion. As I understand the applicant's position, he says that the certificate of taxation of 9 June 2006 is itself based upon the costs orders of 2 and 5 February 2004, and that his assumed challenge to those orders should be regarded by the court as affecting the Registrar's jurisdiction to issue that certificate. Even if there were (or in July 2005 had been) a legitimate challenge to the orders of February 2004, so long as those orders stood, the certificate of taxation could not be impugned. However, as I have explained above, I do not regard the applicant as ever having properly applied for the orders of 2 and 5 February 2004 to be set aside, and he certainly advanced no ground before me why such a step should be taken, or even contemplated. It follows that the applicant's challenge to the certificate of 9 June 2006, on this ground, must fail. 16 For the above reasons, I propose to order that the applicant's motions of which notice was filed on 20 November 2006 be dismissed with costs. 17 I shall only add that, since preparing the above reasons in draft, my Associate has received a letter from the applicant. I have not read that letter. It was the applicant's own Notices of Motion that came before me on 9 February 2006, and I consider that he then had a sufficient opportunity to argue his case in support of them. Were it not for the applicant's unwarranted suggestion that Finkelstein J had refused, without reasons, an application for the costs orders of 2 and 5 February 2004 to be set aside, the applicant's motions of which notice was given on 20 November 2006 would have been dismissed without the need to reserve. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup .